Issue:  Vol. 48 / No. 8 / 22 February 2018

Breaking: Appeals court finds Prop 8 unconstitutional


Attorneys David Boies and Theodore Olson argued the Prop 8 case on behalf of two plaintiff couples. (Photo: Jane Philomen Cleland)
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A divided panel for the 9th U.S. Circuit Court of Appeals in San Francisco ruled Tuesday that California's ban against same-sex marriage violates the rights of gay and lesbian couples.

The highly anticipated February 7 ruling from the three-judge appellate panel upheld the 2010 ruling by now-retired U.S. District Court Judge Vaughn Walker that the constitutional amendment voters passed in 2008, known as Proposition 8, is unconstitutional.

Circuit Judge Stephen Reinhardt of Los Angeles was joined by Senior Circuit Judge Michael Daly Hawkins of Phoenix in determining that Prop 8 violates the U.S. Constitution’s Equal Protection Clause. Circuit Judge N. Randy Smith of Pocatello, Idaho disagreed in a dissenting opinion.

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There is no such reason that Proposition 8 could have been enacted," states the opinion, written by Reinhardt.

The ruling, however, will continue to be stayed – meaning same-sex marriages will still be barred from happening in California – pending the court issuing a mandate. It has 21 days after issuing its ruling to do so.

But it is expected that attorneys representing, the group behind Prop 8, will seek to have the stay remain in addition to filing a request with the 9th Circuit for what is known as an en banc review of the panel’s decision. Then 11 judges randomly selected from the appellate court - though the rules also provide for a full en banc review by all 23 of the circuit court's judges - would consider the case, likely on an expedited schedule at the request of attorneys for the plaintiff couples and the city and county of San Francisco, which is a party to the lawsuit.

The panel’s decision was narrow in scope and would only apply to the state of California, should it be upheld.

The ruling also punctured holes in the argument that marriage needs to be restricted to heterosexual couples to safeguard procreation. Prop 8 did nothing to advance California's interests in childrearing or responsible procreation, added the two justices, because it had "no effect" on same-sex couples who want to raise children "or on the procreative practices of other couples."

The only thing Prop 8 did, states the opinion, was take away rights from same-sex couples.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," states the ruling.

In his dissent, Smith wrote that he is "not convinced" that Prop 8 lacks a "legitimate governmental interest." He later notes that the U.S. Supreme Court "has not recognized" that the right to marry "includes a fundamental right to gay marriage."

The appellate justices were unanimous, though, in ruling that there was no reason for Walker, who is gay and in a decade-long committed relationship, to recuse himself from overseeing the case. Though he was outed by the San Francisco Chronicle following the three-week trial two years ago, months prior to issuing his decision, Walker did not publicly acknowledge his sexual orientation until after he retired from the bench at the end of 2010.

The anti-gay groups that filed the appeal of Walker's ruling did win their argument that they had a right to defend the measure in federal court. Because state officials refused to argue that Prop 8 was a valid law, the initiative's backers petitioned the appellate court for standing to file the appeal.

Lawyers for the two same-sex couples who brought forth the lawsuit against Prop 8 had argued that only the governor or attorney general could pursue an appeal of Walker's ruling. The issue delayed the appellate proceedings for a year as the federal court asked the California Supreme Court to clarify the matter.

The state court ruled last fall that initiative backers could intervene when state officials opt not to do so. The appellate justices endorsed that decision Tuesday.

The lawsuit, known as Perry v. Brown , stems from the fight over marriage equality that former San Francisco Mayor Gavin Newsom jump-started in 2004 when he ordered city officials to marry same-sex couples. That action paved the way for City Attorney Dennis Herrera to file a historic lawsuit against the state seeking marriage rights for LGBT people.

The state Supreme Court ruled in May 2008 that California's anti-gay marriage statutes were unconstitutional, opening up a four-month window that summer and early fall where thousands of same-sex couples tied the knot. Voters by a slim majority overturned that decision at the voting booth that fall, a crushing defeat for the state's LGBT community.

Shortly after the state Supreme Court upheld the voters' right to pass Prop 8, the group American Foundation for Equal Rights filed the federal lawsuit in the spring of 2009 with the high-profile legal team of Theodore Olson and David Boies.

The case is expected to land before the U.S. Supreme Court as the final arbiter on Prop 8's legal validity. Oral arguments could take place as soon as the fall.

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